[assumpsit – goods sold and delivered – money lent – joint stock company, formation of]

Suisted v. Gerrard

Supreme Court of Van Diemen’s Land

Pedder C.J., 4 January 1841

Source: The Cornwall Chronicle and Commercial and Agricultural Register,

6 January 1841[1]

            Before his Honor Sir J. L. Pedder, Knight, Chief Justice, and the following jury of four: - A.T. Collett, Henry Dowling, Henry Bennett, and John Cameron, Esquires.

            This was an action of assumpsit, to recover the sum of £54 3s. 6d. for goods sold and delivered and money lent. The defendant pleaded the general issue, and had paid £15 17s. 6d. into court.

            Mr. Sydney Stephen stated the case to the jury. In the month of May last, a meeting of the licensed vituallers was held at the plaintiff’s to form a joint stock Brewing Company, upon which occasion a dinner was given by the plaintiff, for which no charge was made, but it did not follow that he was called upon at the same time to put his hand into his pocket and find wine and brandy for the company; the parties assembled, agreed to call for something for the good of the house, as usual upon such occasions, during which the defendant came into the room, and feeling interested in the subject for which they had assembled, having made his fortune by brewing, he was solicited, and accepted the office of chairman; certain complimentary speeches followed upon the occasion, to which defendant replied that he felt particularly happy in meeting them on the present occasion, that he had derived his fortune through their custom, and if they would permit him, he would treat them, and thereupon ordered up five gallons of brandy and three dozen each of port and sherry; only about one-third of the brandy was drank and plaintiff had charged only for that quantity. He felt it unnecessary to go into further detail, but would call witnesses to substantiate his case.

            To an answer from the bench, the Solicitor General said that he had received no instructions in the case.

            Mr. George Lukin. - I am a publican; know the parties to the suit; was at plaintiff's house in May last; it was a meeting to form a Licensed Victuallers’ Association, and a joint stock Brewing Company; after the meeting Mr. Suisted gave the company a splendid feed of turkey-fowls, hams, ducks, and geese; Mr. Gerrard came in in the midst and after it was over, took the chair; he then called for five gallons brandy, and ordered the keg to be brought, a case of port and a case of sherry; he said nothing about paying for them; he said it was to treat the publicans by whom he had made a fortune, and that the present moments were some of the happiest in his life; the brandy came in, and full three dozen of both port and sherry; £3 10s. is very moderate for the brandy on that occasion; five and sixpence is moderate per bottle for the wine; I charge 6s. 6d. for the same.

            Alexander McDonald. - I am waiter at Mr. Suisted’s; know defendant, and have supplied him with spirits, &c. [Here witness proved the several items.]

            Cross-examined. - I considered defendant to be all right; I should say he drinks, but do not think he suffers more from it than other parties who drink.

Here Mr. Stephen objected to Mr. Jones acting as counsel, not having received a brief.

            Mr. Jones said that he had been retained, but not having received a brief or any instructions was a misfortune to his client and himself.

            The Attorney General remembered an instance in London where Lord Brougham received a blank sheet of paper as a brief to defend the Age newspaper, when the case was half through.

            The Chief Justice saw no objection to the course adopted by Mr. Jones.

            Cross-examination continued. - Mr. Gerrard took dinner in the same room with the rest, at another table, with about half a dozen more, but after some time he drew his table up to the long table; upon the cloth being removed, he told me to be very attentive, and put down to him whatever was called in; he ordered a cask of brandy, and a case of sherry and port, and the brandy to be brought in; I did so; there were about forty parties present; the company kept drafting off until five o’clock in the morning; Mr. G. was very merry - tipsy - but could behave like a gentleman; he was brought out of his bed and put in the chair at the head of the table.

            Re-examined. - If Mr. Gerrard was taken out of his bed it must have been after he gave the order; I don’t know that he was taken out of his bed; he resided in the house at the time.

            Henry Ruff. - I was in Mrs. Harvey’s service some months ago; Mr. Gerrard resided there; these orders are in his hand writing; I have been three times to plaintiffs house, with orders from defendant for wines, &c; never without an order; I know the order in pencil, but cannot speak to the two in ink; I got the amount of the orders I took.

            Mr. James Jacks. - In the month of September last Mr. Gerrard was indebted to me £22 for fitting up a bar; he paid me a cheque for £10 and said that Mr. Suisted and himself would arrange the rest; Mr. Suisted paid me the balance, £12 and this is his receipt.

            Cross-examined. - I am a shipwright and publican; plaintiff is my landlord; I took the house from the 30th September; the bar I built myself at the house belonging to plaintiff; I have had spirits from McKillop & Anderson as well as plaintiff; I pay £100 a year from year to year; shortly after the work was done Mr. Gerrard paid me £10; Mr. Gerrard, I believe, is proprietor of the house I took from the plaintiff; I happened to be at tea one night at plaintiff's when he asked me to take the house; I should say that £10 was not all Gerrard was to pay towards the improvements; I heard him say to Suisted, that if the house was taken, the bar should be completed at his expense; I asked him for the £10 in advance; he made no objection, but said he and Mr. S. would arrange about the balance; I entered into arrangements for building the bar with Mr. G., and gave him an estimate; he said it was too much; I think the bar was finished a fortnight after I received the cheque; Mr. S. paid me the balance..

            By the Court. - Mr. Gerrard gave me the order to complete the bar; it was after the conversation with Suisted, when Gerrard was present.

            Re-examined. - Plaintiff had not occupied the premises; plaintiff was not present when defendant said plaintiff would settle for the remainder.

            Mr. Wm. Collins. - Knows the parties of this suit; heard defendant say that plaintiff was to pay for fitting up the bar of Captain Jack’s house, and to stop it out of the rent.

            Cross-examined. - I am a publican; when the conversation took place, Gerrard and Jacks were present, and others, but I took no notice, as it did not concern me. Gerrard said, as Kibble had gone away Suisted was to see the work down and pay it out of the rent; I heard nothing said about the bar at the time; I was one of the party that dined at plaintiff’s in May last; there was a public notice in the newspapers; there was sufficient for all hands; Mr. Gerrard was a little the worse for liquor, but not drunk; he ordered plaintiff to kill all the geese and bring them in for supper, but I will not be certain it was the evening in question; I think it was not; I have seen defendant a little the worse for liquor, but not drunk; I was myself a little the worse for liquor towards morning.

            Re-examined. - Gerrard was there during part of the supper; he was in the chair.

            This closed the plaintiff’s case.

            The Solicitor General replied, he had the honor of appearing before them under considerable disadvantages, but he felt sure of securing every attention to what he should bring under their notice, and every allowance made from being denied the advantage of making himself acquainted with the pleadings. The plaintiff sought to recover the sum of £54 3s. 6d.; they had paid into court £15 17s. 6d., which plaintiff might have taken out, had he thought proper. As to the balance, defendant denies he ever promised to pay in the manner and form set forth in the declaration. It was for them to say whether the £15 covered the claim of plaintiff against defendant, and if not, how much more was due. What was the evidence set up. Upon the evidence of Mr. Lukin, a publican, rested the fact, of a great portion of the articles of consumption charged in the bill of particulars having been ordered. According to his testimony, he attended the house of plaintiff in May last, who gave a splendid feed, but charged nothing for it; on this occasion, the three first items charged are said to have been ordered by defendant, amounting to £23 6s.; to that portion of the bill we say we are not indebted, and have not promised to pay, and the only evidence in support of those items was Lukin, who says that in the midst of the feed defendant came in and took the chair, and gave orders, but did not say anything about payment. Freeman says, that upon the night in question, defendant ordered him to be particularly attentive that nothing was wanting, but what was to be supplied, and nothing that was supplied but what was to be charged to him. There were also certain small items for spirits, &c., which they could not recover, being debarred by the local act to prevent tippling. There were two points for consideration, 1st, with respect to the supply at the feast, and 2nd, as to the erection of the bar; upon the first point he saw no necessity to bring evidence, nor should he add to that already before the jury. Mr. Gerrard appeared to be a very ready milch cow to these publicans, and they appeared inclined to make the most of him; they appeared to be all jolly dogs; judging from the specimens who had entered the box that day, and there appeared no occasion to have assembled themselves together for mutual protection, as they appeared to have done ample justice to themselves. Here are forty of these gentlemen assembled under the roof of their compeers; the first part of the day is devoted to business, and then comes the feed, but it was not a dry feed, as Mr. Lukin would lead you to suppose, for it appears the landlord had supplied them most liberally; at length unhappy Mr. Gerrard finds his way into the room, and seats himself at another table, at last the tables are joined, it was a meeting of the waters, and strong waters too, and then the supplies are called for; from the evidence of Freeman, he was taken from his bed and placed in the chair to pay for the lush of these forty publicans; that Mr. Gerrard was in a fit state for bed, he thought too clear to detain them any longer upon the point. It was a case of oppression, injustice, and swindling, to call upon the defendant by these means to pay for the feed. He should put in a bill, given by Suisted to Gerrard, and receipted up to the 2nd June, but there was no item about the wine and spirits at the feed, although that took place in May, that bill was prima facie evidence of there being no similar demand at the time.

            Chief Justice. - The receipt cannot be given in evidence; if so, it ought to have been pleaded.

            Solicitor-General. - No, but it raises a presumption that all former accounts were paid. Then comes the evidence of Jacks, who although he does not posses that pleading retundity of person, yet, if you look in his face, you must be convinced that he was one of the Forty. The £12 claimed for fitting up the bar, is rebutted by the evidence of this cheque, showing that the £10 paid by Gerrard was all that he was called upon to pay. Jacks tells you that he does not remember these words being in the body of the cheque at the time he received it, but if you look at it you will find it to have been written in the same ink and by the same pen; Collins also tells you that he heard something which he thought related to the bar, but it could only have related to Kebble. I would ask you if it is even probable that Suisted paid the amount? I think not. Then if you strike off that amount, the whole claim will be reduced to £15 17s. 6d., the amount paid into court. Although he felt confidence in the strength of his case, he would not incur the responsibility of leaving it as it was without a witness.

            H.A. De Dassel, Esq., M.D. - Known the parties to this suit; called on defendant at plaintiff’s the evening that he left to go to Mrs. Harvey’s; it was in June, but can’t say what time in that month; he was at home, and just about leaving; several gentlemen were present, and defendant called for a bottle of wine; before leaving, Mr. Gerrard put a pound note on the table, and asked if there was any other claim against him; he said no, and the change was brought by some one; he left plaintiff's that evening.

            Cross-examined. - The bottle was not half finished; Mr. Suisted said he had no other claim.

            Mr. S. Stephen. - The defence, like all the proceedings in the case, was conscientious and upright - namely, that defendant was intoxicated and therefore not answerable, and thereby save his person at the expence of his reputation. If defendant was a retired gentleman, he did not exhibit the character at all events and if he wished it, there appeared to be some parties in the court so reckless as not to allow him. The intoxication spoken of, he, Mr. S. thought was the intoxication of flattery; he being a retired brewer; there was no doubt he was not drunk, but intoxicated with his good fortune, when his spirits fermented as his ale had ever done, causing the order to be given, which he now begrudges to pay. It was rather too much to expect that the plaintiff should pay, or that the parties present who did not order it should pay. The order was sufficient to render him liable. It was most disreputable to set up such a defence to prevent payment; it was clear, however, that he was not drunk, except from his good fortune. It was not likely that plaintiff was to fit up the house belonging to Gerrard, and put his hand in his pocket to the amount of £12.  He would leave the fate in the hands of the jury, without further observation.

            The Chief Justice then summed up, and the jury returned a verdict for plaintiff £23 6s. independent of the £15 paid into court.

            Messrs. S. Stephen and Hookey for plaintiff; the Solicitor General and Mr. Horne for the defence.

Notes